Adoption
Balakumar.S
(Querist) 30 July 2013
This query is : Resolved
Unmarried Christian Lady at the age of 50 has adopted a Minor Lady, aged 14 years by way of Registered adoption deed dated 26-10-2004 and treating her as her daughter by providing education, care, shelter, etc. Now that adoptive christian mother died in the year 2013?
I want to know whether the adoptive daughter is the legal heir of her adoptive mother as per Indian Succession Act? Whether she is entitled to sue to declare her as absolute owner of the properties left by her adoptive mother? Or Succession OP is maintainable?
The adoptive mother has no surviving father, mother, brother or sister.
Please give your valuable opinions
prabhakar singh
(Expert) 30 July 2013
The CLEAN CONCEPT OF ADOPTION originated among Hindus only and that is now dealt by a statute Hindu Adoption & maintenance Act.
There has been NO CLEAN CONCEPT OF ADOPTION among christians or muslims,though christians do not bar it.
There is no specific statute enabling or regulating adoption among Christians in India.In the past, persons other than Hindus ,who wished to adopt a minor child use to approached the Court under the provisions of the Guardians and Wards Act of 1890.Difficulties arose when the child attained the age of majority.
So as history of legislation speaks a Bill named 'Adoption of Children Bill, 1972' was introduced but stood dropped due to 'thought of attack on muslim personal law.
Then again Sparring Muslims another Bill'the Adoption of Children Bill, 1980' but could not become statute. There after Christian Adoption and Maintenance Bill, 1990,was thought of but that too could not become law.
Then according to current position of law cHRISTIAN (or non Hindu)foster parent loses all rights and control over child becoming major and such foster children are not treated in law as children of foster parent so as to treat them successor of foster parents BUT in India IT IS SUBJECT TO EXCEPTION OF A CUSTOM taking note of conversions of Hindus into christianity who adhered the practice since long. Punjab is one state in which it was recognized as CUSTOM Sohan Lal V. A.Z. Makuin (AIR 1929 Lahore 230).The custom there was found to exist among converted tribes as reveals another full bench judgement rendered in 1945 by Lahore High Court.In Ranbir Karam Singh V. Jogindra C. Bhattachargi, AIR 1940 All. 134 at 139. The ALLAHABAD HIGH COURT held held that it is necessary for the party to allege and prove that there is a custom of adoption among the Christian community in Punjab or any section of that community, before any question as to whether any such adoption confers on the alleged adopted boy the same rights as an adoption in Hindu law confers on him, can be considered.
In SOUTHERN part of the Country KERALA seems to have this CUSTOM. among the Syrian Christians of Travancore, there is an ancient custom of adoption.
It is as late as 1999 that we can point out a Judgement that was rendered in in Philip Alfred Malvin v. Gonsalves, (see 1999 (1) KLT 292 = AIR 1999 Ker. 187) wherein a Single Bench of the Kerala High Court held that it is an admitted fact that Christian Law does not prohibit adoption and also that Canon Law recognises adoption. It was also held that the main purpose of law of adoption is to provide consolation and relief to childless persons. An adopted child is transplanted in the adoptive family creating all rights and relationships as if the child was a biological child. On the other hand, all his rights and relationships cease in the natural family. Apart from the religious motives, secular motives are also important such as man’s desire for celebration of his name for the perpetuation of his lineage, for providing security in the old age and for dying in satisfaction that one has left an heir to one’s property. The position of an adopted child in respect of inheritance and maintenance is the same as that of a natural born child. The Court opined that simply because there is no separate statute providing for adoption, it cannot be said that an adopted son would not be entitled to inherit the properties of his adoptive parents.In a latter DIVISION BENCH CASE the aforesaid judgement was approvedin Maxin George v. Indian Oil Corporation Ltd [2005 (3) K.L.T 57] with a catution that an abandoned child fostered by a couple does not attain the status of an adopted child unless the formalities of adoption takes in the physical act of giving and taking of the child and the giver of the child is duly empowered or competent in that behalf. Obtaining an order appointing one as the guardian of such a child under the Guardians and Wards Act also does not confer on the child the status of an adopted child.
HENCE TO CONCLUDE IT WOULD BE RIGHT BASED ON CASE TO CASE IN COURTS.
R.K Nanda
(Expert) 30 July 2013
no more to add.
Balakumar.S
(Querist) 31 July 2013
Really thanks a lot Mr. Prabakhar Singh and thanks to the endorsements made by others.
